Shamlal Kalwar and Others vs Emperor

Jwala Prasad, J.—The petitioners have been convicted of rioting and with the loot of gram and wheat which the servant of one Santlal was tarrying on three carts having received the same as his Maliki share from the Bataidars. Shamlal Kalwar, petitioner No. 1, has farther been convicted u/s 325, Indian Penal Code for having caused grievous hurt to Chethru by breaking his tight ulna; Shamlal has received 18 months'' rigorous imprisonment u/s 147, 379, and another three months u/s 325, the sentences to run consecutively. Thus, Shamlal has received ill months, rigorous imprisonment in all. Birth Koeri has received nine months u/s 147 And six months u/s 379 read with Section 75, the sentences to run concurrently and the rent of the petitioners have received three months rigorous imprisonment, under each of the Sections 147 and 379, the sentences to run concurrently.

The occurrence is said to be the outcome of a long standing dispute between the petitioner No. 1, Shamlal, and Santlal, Santlal claimed the land by virtue of sale-deed, executed in his favour by one Amichand, father-in-law of Shamlal, who previously had got a sale-deed in his name from Shamlal. Shamlal disputed the title of Santlal in the land by virtue of the sale-deed, for he claimed that Amichand was a mere Farzidar, The dispute as to the possession of the land was set at rest by an order u/s 145, Criminal Procedure Code, in favour of Santlal. Shamlal was, however, convicted in a case u/s 304, Indian Penal Code, and was sentenced to two years'' rigorous imprisonment. He has just come out of jail and has started the dispute with Santlal again about this land.

The case of the prosecution is that on the day of occurrence santlal''s servant Chethru went to get the Maliki share of the crop from the Bataidars with carts. The carts were loaded and started off; one was some distance, the other two were together. Accused came and beat Chethru and drove away the carts. Shamlal, on the other hand, states that he was in possession of the land through his Bataidar Birah Koeri, petitioner No. 2, and that on the day of occurrence the complainant''s men tried to loot bundles from Bircha''s Kaliban and a fight occurred. Undoubtedly a fight between the parties did take place as two men on the side of the complainant, and Hira and Birah on the side of accused were hurt.

The chief question for determination is as to how and where the occurrence took place. Both the Courts below have concurrently held that the occurrence took place as alleged by the prosecution while the carts were being taken by Chethru. This is corroborated by the fact that two of the loaded carts were found in the Kalihan of Birch Koeri which is on the north west, part of the village. The Kalihan of the Bataidar of Sant Lal is on the south and the place of occurrence is further south. We have, therefore, no hesitation in accepting (he finding of the Court below as to the occurrence itself.

Learned Counsel also moved before us for the reduction of the sentences passed upon the accused. Shamlal, petitioner No. 1, has acted in a high-handed manner and the history of the litigation shows that he disregarded the order of the Magistrate u/s 145, Criminal Procedure Code, in raking up the dispute as to the possession of the land without having gone to the Civil Court. He, therefore, deserves a severe punishment and the sentence passed upon him does not, in the circumstances of the case, appear to be severe. Birch Koeri no doubt has had a previous conviction u/s 379 and, therefore, he has received an imprisonment of six months under that section. He has further received a sentence of nine months u/s 147, We reduce his sentence under the latter section to six months'' rigorous imprisonment and make both the sentences run concurrently. Thus, he gets six months in all. He certainly deserves a somewhat severe sentence inasmuch as he appears to have fully supported the case of Shamlal, and the two cart loads of gram and wheat were found in his Kalihan. He is also said to be the Bataidar of Shamlal. The rest of the accused appear to be mere servants and underlings of Shamlal and do not seem to have had particular interest in the dispute. They have received three months'' rigorous imprisonment under each of the Sections 379 and 117, the sentences running concurrently. We reduce their sentences to the term already undergone by them.

It may be mentioned that the learned Counsel on behalf of the petitioners raised a law point founded on Section 342 of the Criminal Procedure Code, urging that the entire trial was vitiated and that there should be a re-trial. We have carefully examined this contention with the fasts and circumstances and we are of opinion that there is no substance in it. The examination and cross-examination of the prosecution witnesses finished on the 24th May 1921 and the charge was then framed. The assumed were asked if they would cross-examine any of the prosecution witnesses after the charge but they destined an I consequently they were called upon to enter go their defence, fixing the 11th June. On the 11th June, at the instance of the Public Prosecutor, a charge u/s 325 was added against one of the accused Shamlal Kolwar and the charge u/s 147 was verbally altered. The prosecution witnesses were then re-called and were cross examined on the 17th June. On the 25th of June the previous convictions against two of the accused Shamlal and Birch Keori were framed and five defence witnesses were examined on behalf of the defence and discharged. It is not disputed that the prosecution evidence then closed and the accused were called upon to enter on their defence on the 24th May 1921 upon the charges that were originally framed. It is, however, contended that after the alteration of the charge u/s 147 and the addition of the charge u/s 325 on the 11th June the procedure under Sections 255 to 257 of the Code of Criminal Procedure re-opened and the prosecution case, therefore, was closed on the 25th June 1921 when the accused should have been examined, and the omission to do so contravened the mandatory provisions of Section 342 of the Code. In my opinion Sections 255 to 257 have no application to a case when a charge is altered or added. Section 342 has consequently no application when the accused were already called on to enter on their defence prior to the alteration or the addition of the charge. The procedure for the trial in regard to the alteration or addition of a charge is laid down in Sections 227 to 281 of the Code. Section 228 empowers the Court to proceed with the trial as if the new or altered charge had been the original, charge. Section 229 empowers the Court either to direct a new trial or to adjourn a trial for such period as may be necessary if the Court be of opinion that the proceeding immediately with the trial is likely to prejudice the accused or the prosecution. Section 231 entitles the prosecutor and the accused to re-call or summon or re summon and examine, with reference to the altered or added charge, any witness who may hare been examined and also to call any further witness whom the Court may think to be material. The addition or the alteration of a charge doss not open up the trial from the beginning and the Court may immediately proceed with the trial if it is of opinion that there will be no prejudice to the accused.

In order to safeguard the interests of the parties Section 231 gives them the right to re-call or re-summon any witness. The retailing of the prosecution witness for further cross Examination in the present case by the accused was evidently under that section, u/s 227 the added or altered charge has to be read and explained to the accused, These safeguards appear to have been deemed sufficient to protect the interests of the prosecution or the accused in the case. The trial, as already observed, does not commence de nova, so that if the accused had been already called upon to enter on their defence there is no further obligation upon the Magistrate to examine the accused u/s 342 of the Code Therefore, the authorities on the subject, of which we are so well cognisant, do not at all apply to the present case. The contention is, therefore, overruled.

Adami, J.

I agree.